Berry v. Lamar Life Ins. Co.

• Citation: 165 Miss. 405,142 So. 445
• Decision Date: 06 June 1932
• Docket Number: 30006
• Court: Mississippi Supreme Court
• Parties: Berry v. Lamar Life Ins. Co.

142 So. 445

165 Miss. 405

Berry v. Lamar Life Ins. Co.

No. 30006

Supreme Court of Mississippi

June 6, 1932

(Division B.)

1 INSURANCE.

Life insurance provision making furnishing of proof of total and permanent disability condition precedent to waiver of premiums held reasonable provision not against public policy.

2 INSURANCE.

Court will enforce insurance contracts according to their terms, if not prohibited by law or public policy.

3 INSURANCE.

Statute prohibiting change in limitations prescribed did not prevent life insurer from making proof of disability a condition precedent to waiver of premiums (Code 1930, section 2294).

4 INSURANCE.

Where life policy provided for waiver of premiums on insured's total and permanent disability, but insured, becoming insane, was unable to make proof of disability, and others did not know terms of policy until after his death, and three premiums were not paid, insurer was not liable.

ON SUGGESTION OF ERROR.

(Division B. Feb. 13, 1933.)

[145 So. 887. No. 30006.]

INSURANCE. Under life policy making furnishing of proof of total and 'permanent disability condition precedent to waiver of premiums, there was no accrual of benefits and no waiver of premiums, where such proof was not furnished while policy was in force.

HON. E. M. LANE, Judge.

Action by Missouri W. Berry against the Lamar Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

ON SUGGESTION OF ERROR.

On suggestion of error. Judgment affirmed.

For former opinion, see 142 So. 445.

W. D. Hilton, of Mendenhall, and J. Morgan Stevens, of Jackson, for appellant.

The prior Mississippi case of New York Life Insurance Company v. Alexander, 122 Miss. 813, 85 So. 93 stands in the pathway of appellant in this cause, and unless overruled or modified rules the case at bar.

Stipulation, in insurance policy, requiring insured claiming to be totally disabled within total disability clause to furnish company due proof of total disability, should be read with an exception reasonably saving right of assured from forfeiture, unless clearly negatived, when due to no fault of his own he is totally incapacitated from giving such notice.

Rhyne v. Jefferson Standard Life Ins. Co., 196 N.C. 717, 199 N.C. 419, 154 S.E. 749.

Filing proofs of disability is not a condition precedent to attaching of liability where insured became insane and was incapable of furnishing proof.

Nelson v. Jefferson Standard Life Insurance Company, 199 N.C. 443, 154 S.E. 752; Swann v. Atlantic Life Insurance Company, 159 S.E. 192; Levan v. Metropolitan Life Insurance Company, 136 S.E. 304; Minnesota, etc., Insurance Company v. Marshall, 29 F.2d 977; Bank of Commerce and Trust Company v. Northwestern Insurance Company, 26 S.W.2d 135; Pfeiffer v. Missouri State Life Insurance Company, 174 Ark. 788, 297 S.W. 847, 54 L. R. A. 600; Marti v. Midwest Life Ins. Co., 108 Neb. 845, 189 N.W. 388, 29 A. L. R. 1507; Old Colony Life Insurance Company v. Julian, 175 Ark. 359, 299 S.W. 366; 54 A. L. R. 611; 27 L. R. A. (N. S.) 319; 18 L. R. A. (N S.) 109; 14 L. R. A. (N. S.) 503; Ann. Cas. 1914D 413; 14 Ann. Cas. 294. }

Where the circumstances of an accident are such that it is impossible to comply with the provisions in an accident policy as to the giving of notice within a certain time, the failure to give a notice does not bar a recovery.

14 R. C. L., par. 504, 1333.

Where the beneficiary in a policy of insurance is ignorant either of the death of the insured or the existence of the policy, delay in giving the notice and making proofs is excused.

Metropolitan Life Insurance Company v. Peoples' Trust Co., 177 Ind. 578, 98 N.E. 513, 41 L. R. A. (N. S.) 285; Trippe v. Provident Fund Soc., 140 N.Y. 23, 35 N.E. 316, 37 A. S. R. 529, 22 L. R. A. 432; Munz v. Standard Life, etc., Ins. Co., 26 Utah 69, 72 P. 182, 99 A. S. R. 830, 62 L. R. A. 485; 18 L. R. A. (N. S.) 109; Cady v. Fidelity, etc., Co. of New York, 134 Wis. 322, 113 K W. 967, 17 L. R. A. (N. S.) 260; 41 L. R. A. (N. S.) 287; Ann. Cas. 1914D 414.

A provision requiring a notice on pain of forfeiture will not be construed to require strict performance, when by a plain act of God it is made impossible of performance.

Valisano v. Continental Insurance Company, 254 Mich. 122, 235 N.W. 868.

The general rule with reference to giving notice under an accident policy is that failure to comply with the terms of the policy will be excused by the incapacity or inability of the assured to give such notice.

Employers' Liability Assurance Corp. v. Roehm, 124 N.E. 223, 7 A. L. R. 182; Cantrell v. Great American Casualty Co., 256 Ill.App. 47; Walker v. Amsterdam Casualty Co., 154 S.E. 221; Ward v. Standard Accident Ins. Co., 30 F. 328; London Guaranty, etc., Co. v. Leefson, 37 F.2d 488; Haskell v. Eagle Indemnity Co., 144 S.E. 298; Caldwell v. Tenn. Life, etc., Co., 144 S.E. 678; Southern Surety Co. v. Heybrun, 234 Ky. 739, 29 S.W.2d 6; Mewborn v. Employers, etc., Co., 198 N.C. 156, 150 S.E. 887; 54 A. L. R. 611.

Even though the defendant had provided in the policy contract that the assured must give notice of total and permanent disability within a certain period of time, say sixty or ninety days, such provision would be contrary to section 2294, Code of 1930.

Standard Accident Insurance Company v. Broom, 111 Miss. 409, 71 So. 653; General Accident v. Walker, 99 Miss. 404, 55 So. 52; Dodson v. Western Union Teleg. Co., 97 Miss. ---; I. C. R. R. Co. v. Jordan, 66 So. ---; Standard Life & Accident Co. v. Fisher, 80 So. 347; National Casualty Company v. Mitchell, 138 So. 808.

It could not have been in the contemplation of the parties that if the insured, who was required to give notice, was unable to do so by reason of the very accident against which indemnity was given, he should therefrom lose such indemnity through no fault of his own.

Missouri State Life Ins. Co. v. Le Fevre, 10 S.W. 267.

In reply to the suggestion that the insured who, being insane, failed to file proof of loss within the time limit stated in the policy, could not recover, it was said that such a proposition is too repugnant to justice and human ity to merit serious consideration.

Hirsch-Fauth Furniture Co. v. Continental Ins. Co. 2 F. 216, 219; Hartford Fire Ins. Co. v. Doll, 23 F. 443 444, 56 A. L. R. 1059; Rhyne v. Jefferson Standard Life Ins. Co. (N. C., 1930), 154 S.E. 749; Woodmen Accident Assn. v. Pratt, 62 Neb, 673. 87 N.W. 546, 647, 55 L. R. A. 291, 89 Am. St. Rep. 777. Green, Green & Jackson, of Jackson, for appellant, as Amicus Curiae.

Provision of the policy seeking to subvert the right of appellant accruing upon the total disability is contrary to Section 2294, Code of 1930 and void.

National Casualty Co, v. Mitchell, 138 So. 808; Southern Express Co. v. Hunnicutt, 54 Miss. 566; Clements v. Telegraph Co., 77 Miss. 750; Hartzog v. Telegraph Co., 84 Miss. 448; Dodson v. Telegraph Co., 52 So. 693, 97 Miss. 104; Insurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Standard Acc. Ins. Co. v. Broom, 71 So. 653, 111 Miss. 409; General Accident Fire & Life Assurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Fraternal Aid Union v. Whitehead, 125 Miss. 53, 87 So. 453; Stuyvesant Ins. Co. v. Smith Motor Sales Co., 99 So. 575,135 Miss. 585; Mass. Protective Assn. v. Cranford, 102 So. 171, 137 Miss. 876; Southern Express Co. v. Capetown, 44 Ala. 101.

Notwithstanding the literal meaning of the words used, unless clearly negatived, a stipulation in an insurance policy requiring notice should be read with an exception reasonable saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot" fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms.

Swann v. Atlantic Life Ins. Co., 159 S.E. 193; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. 977; Houseman v. Home Ins. Co., 88 S.E. 1051; Insurance Co. v. Boykin, 12 Wall. 433, 20 L.Ed. 442,

It could not have been in the contemplation of the parties that if the insured, who is required to give notice, was unable to do so by reason of the very accident against which indemnity was given, he should therefrom lose such indemnity through no fault of his own.

Missouri State Life Ins. Co. v. Fevre, 10 S.W. 267.

It is settled by an overwhelming weight of authority that where the failure to give prompt notice is not due to the negligence of the insured or the beneficiary, but such compliance has been prevented and rendered impossible by an act of God, this would furnish a sufficient legal excuse for the delay in giving the stipulated notice; and this doctrine has been applied in cases in which a specified time for the giving of the notice has been fixed by the contract.

Levan v. Metropolitan Life Ins. Co., 138 S.C. 253, 136 S.E. 304, 306; Rhyne v. Jefferson Standard Life Insurance Co., 196 N.E. 717, 147 S.E. 6, 7; North American Ace. Ins. Co. v. Watson, 67 A. App. 193, 64 S.E. 693; Craig v. Insurance Co., 80 S.C. 151, 61 S.E. 438,128 Am. St. Rep. 877, 15 Ann, Cas. 216. Contracts of insurance will never be so construed as to destroy that contracted for, which would be the case here, by compelling Berry to do that which the law forbade.

Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U.S. 312.

The furnishing of satisfactory notice is not a condition precedent of liability.

National Casualty Co. v. Mitchell, 138 So. 808; Byran Lumber & Supply Co. v. Page, 109 Conn. 256,146 A. 293. W. D. Hilton, of Mendenhall, and J. Morgan Stevens, and Green, Green & Jackson, for appellant.

When the legislature changed the rule by the introduction of Section 2575, and...